Intellectual property
Intellectual property
(
IP
) is a term referring to a number of distinct types of creations of themind for which property rights are recognized²and the corresponding fields of law.
[1]
Under intellectual property law, owners are granted certainexclusive rightsto a variety of intangibleassets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property includecopyrights,trademarks, patents,industrial design rightsandtrade secretsin some jurisdictions.
Although many of the legal principles governing intellectual property have evolved over centuries, it was not until the 19th century that the term
intellectual property
began to be used,and not until the late 20th century that it became commonplace in the United States.
[2]
TheBritishStatute of Anne1710 and theStatute of Monopolies 1623are now seen as the origin of
copyrightand patent lawrespectively.
[3]
His
tory
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See thetalk pagefor details.
(N
ovember 2009)
Main articles:History of patent lawandHistory of copyright law
Modern usage of the term
intellectual property
goes back at least as far as 1888 with thefounding inBernof theSwiss Federal Office for Intellectual Property(the
Bureau fédéral de la propriété intellectuelle
). When the administrative secretariats established by theParisConvention(1883) and theBerne Convention(1886) merged in 1893, they also located in Berne,
and also adopted the term intellectual property in their new combined title, theUnitedInternational Bureaux for the Protection of Intellectual Property. The organisation subsequentlyrelocated to Geneva in 1960, and was succeeded in 1967 with the establishment of theWorldIntellectual Property Organization(WIPO) bytreatyas an agency of theUnited Nations.
According to Lemley, it was only at this point that the term really began to be used in the UnitedStates (which had not been a party to the Berne Convention),
[2]
and it did not enter popular usageuntil passage of theBayh-Dole Actin 1980.
[4]
"The history of patents does not begin with inventions, but rather with royal grants byQueenElizabeth I(1558-1603) for monopoly privileges... Approximately 200 years after the end of Elizabeth's reign, however, a patent represents a legal [right] obtained by an inventor providingfor exclusive control over the production and sale of his mechanical or scientific invention...[demonstrating] the evolution of patents from royal prerogative to common-law doctrine."
[5]
In an 1818 collection of his writings, the French liberal theorist,Benjamin Constant, arguedagainst the recently introduced idea of "property which has been called intellectual."
[6]
The term
intellectual property
can be found used in an October 1845 Massachusetts Circuit Court ruling inthe patent case
Davoll et al. v. Brown.
, in which Justice Charles L. Woodbury wrote that "only inthis way can we protect intellectual property, the labors of the mind, productions and interestsare as much a man's own...as the wheat he cultivates, or the flocks he rears." (
1 Woodb. & M. 53,3 West.L.J. 151, 7 F.Cas. 197,
N
o. 3662, 2 Robb.Pat.Cas. 303, Merw.Pat.Inv. 414
). Thestatement that "discoveries are...property" goes back earlier. Section 1 of the French law of 1791stated, "All new discoveries are the property of the author; to assure the inventor the propertyand temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years."
[7]
In Europe,Frenchauthor A. Nion mentioned
propriété intellectuelle
in his
Droits civils des auteurs, artistes et inventeurs
, published in 1846.The concept's origins can potentially be traced back further.Jewish lawincludes severalconsiderations whose effects are similar to those of modern intellectual property laws, though thenotion of intellectual creations as property does not seem to exist ± notably the principle of Hasagat Ge'vul (unfair encroachment) was used to justify limited-term publisher (but not author)copyright in the 16th century.
[8]
TheTalmudcontains the prohibitions against certain mentalcrimes (further elaborated in theShulchan Aruch), notablyGeneivat da'at( , literally
"mind theft"), which some have interpreted
[9]
as prohibiting theft of ideas, though the doctrine is principally concerned withfraudanddeception, not property.
Object
i
ve
s
[
ed
i
t] F
i
nanc
i
al
i
ncent
i
ve
These exclusive rights allow owners of intellectual property to benefit from the property theyhave created, providing a financial incentive for the creation of and investment in intellectual property, and, in case of patents, pay associatedresearch and developmentcosts.
[10]
Somecommentators, such asDavid LevineandMichele Boldrin, dispute this justification.
[11]
[
ed
i
t] Econom
i
c
g
rowt
h
The existence of IP laws is credited with significant contributions toward economic growth.
[
citationneeded
]
Economists estimate that two-thirds of the value of large businesses in the U.S. can betraced to intangible assets.
[
citation needed
]
"IP-intensive industries" are estimated to generate 72 percent morevalue added(price minus material cost) per employee than "non-IP-intensiveindustries".
[12][
dubious± discuss
]
A joint research project of theWIPOand theUnited Nations Universitymeasuring the impact of
IP systems on six Asian countries found "a positive correlation between the strengthening of theIP system and subsequent economic growth."
[13]
Other models, such as the Nash equilibrium,would not expect that this correlation necessarily means causation: The Nash equilibrium model predicts that patent holders will prefer to operate in countries with stronger IP laws.
[
neutralityisdisputed
]
In some of the cases, as was shown for Taiwan
[14]
after the 1986 reform, the economic
growth that comes with a stronger IP system might be due to an increase in stock capital fromdirect foreign investment.
C
r
i
t
i
c
is
m
Main article:Criticism of intellectual property
T
h
e term
i
t
s
elf
Richard Stallmanargues that, although the term
intellectual property
is in wide use, it should berejected altogether, because it "systematically distorts and confuses these issues, and its use wasand is promoted by those who gain from this confusion." He claims that the term "operates as acatch-all to lump together disparate laws [which] originated separately, evolved differently,cover different activities, have different rules, and raise different public policy issues" and that itconfuses these monopolies with ownership of limited physical things
[15]
Stallman advocatesreferring to copyrights, patents and trademarks in the singular and warns against abstractingdisparate laws into a collective term.
T
h
e law
s
Some critics of intellectual property, such as those in thefree culture movement, point atintellectual monopoliesas harming health, preventing progress, and benefiting concentratedinterests to the detriment of the masses,
[16][17]
and argue that the public interest is harmed by ever expansive monopolies in the form of copyright extensions,software patentsand business method
patents.There is also criticism
[
by whom?
]
because strict intellectual property rights can inhibit the flow of innovations to poor nations. Developing countries have benefitted from the spread of developedcountry technologies, such as the internet, mobile phone, vaccines, and high-yielding grains.Many intellectual property rights, such as patent laws, arguably go too far in protecting thosewho produce innovations at the expense of those who use them.
[
citation needed
]
TheCommitment toDevelopment Indexmeasures donor government policies and ranks them on the "friendliness" of their intellectual property rights to the developing world.Somelibertariancritics of intellectual property have argued that allowing property rights in ideasand information creates artificial scarcity and infringes on the right to own tangible property.Stephan Kinsella uses the following scenario to argue this point:[I]magine the time when men lived in caves. One bright guy²let's call him Galt-Magnon² decides to build a log cabin on an open field, near his crops. To be sure, this is a good idea, andothers notice it. They naturally imitate Galt-Magnon, and they start building their own cabins.But the first man to invent a house, according to IP advocates, would have a right to preventothers from building houses on their own land, with their own logs, or to charge them a fee if they do build houses. It is plain that the innovator in these examples becomes a partial owner of the tangible property (e.g., land and logs) of others, due not to first occupation and use of that property (for it is already owned), but due to his coming up with an idea. Clearly, this rule flies
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